IP bill passes Senate, no civil enforcement power for DoJ

The Senate approved new IP enforcement legislation Friday, with the House …

The PRO-IP Act, which would ramp up enforcement of intellectual property laws and stiffen penalties for infringers, won approval by unanimous consent in the Senate Friday—but only after legislators stripped out a controversial provision that would have empowered the Department of Justice to litigate civil suits on behalf of content owners and hand over the winnings.

Until recently dubbed the Enforcement of Intellectual Property Rights Act, S.3325 was rebranded as the "Prioritizing Resources and Organization for Intellectual Property Act," or PRO-IP, to match its sibling in the House of Representatives. It also now resembles the House bill, which passed overwhelmingly in May, in that it lacks a clause that would have given the Justice Department authority to bring civil suits against patent and copyright infringers, turning the damages over to the IP holders.

The civil suits provision had drawn heavy fire not only from online rights groups, who blasted it as an "enormous gift" to Big Content, but from the Justice Department itself. In a letter to the Senate earlier this week, DoJ had complained that the law threatened to turn government attorneys into ""pro bono lawyers for private copyright holders regardless of their resources." Several other provisions to which objections had been raised were stricken or altered when the bill was marked up in committee.

The Bush administration had also objected to a provision that remains in the bill, creating an IP "czar" within the White House to coordinate IP enforcement efforts. Justice had argued that this amounted to a congressional usurpation of a presidential prerogative, and therefore a constitutionally dubious encroachment on the separation of powers. Most observers, however, believe this objection is unlikely to result in a presidential veto. Also preserved in today's bill are provisions increasing penalties for infringement, targeting the import or export of infringing goods, increasing civil forfeiture powers in infringement cases, and establishing greater coordination between state, federal, and international anti-piracy efforts.

Content industry groups, unsurprisingly, rejoiced at the news. RIAA head Mitch Bainwol called the legislation "music to the ears of all those who care about strengthening American creativity and jobs," while the US Chamber of Commerce dubbed it "a win for both parties and, more importantly, for America's innovators, workers whose jobs rely on intellectual property, and consumers who depend on safe and effective products." Less sanguine was Gigi Sohn of Public Knowledge, who though relieved at the removal of the civil enforcement language, argued that the bill "only adds more imbalance to a copyright law that favors large media companies."

The House version of the Senate language has been placed on the suspension calendar for Saturday, when it is expected to pass easily.